Posts Tagged ‘Family Responsibility’

JULY 30, 2012 VOLUME 19 NUMBER 29
When your parents go to the nursing home, could you be liable for their bills? That may seem unlikely, but as the country’s leading authority on the subject (Prof. Katherine Pearson from the Dickinson School of Law at Pennsylvania State University) notes, there are laws on the books in many states which could make children pay for their indigent parents’ care. Prof. Pearson guest-authored this week’s Elder Law Issues, and she explains the problem and trends:

The latest controversial effort to reduce public costs for long term care may come not from the budget cutters at state and federal offices for Medicare or Medicaid, but from nursing homes, assisted living facilities or personal care homes. Pennsylvania is the proving ground for the test – and other states are watching.

Over the course of several years, nursing homes have increasingly turned to Pennsylvania’s filial support law as a tool to compel children to either help a parent qualify for Medicaid — or be at risk of paying for the parent’s bills out of their own pockets. Pennsylvania’s provision dates to colonial times, but a 2005 transfer from the welfare laws to the domestic relations code increased its visibility. The law provides that a child has the “responsibility to care for and maintain or financially assist” a parent, if the parent is deemed “indigent.” The statute does not define the term, but case law has given it a practical meaning by holding a parent is indigent if he or she does not have sufficient means to pay for care.

Occasionally a suit is brought by a needy parent against a child. In 1994, in the case of Savoy v. Savoy, an uninsured mother who had $10,000 in unpaid medical expenses sued her son. The result: a modest award of $125 per month, perhaps more significant for its symbolic value than for the economic effect in the case itself.

Since then, a series of cases and decisions has expanded the importance of the law in Pennsylvania. The latest case was decided by an intermediate appellate court in May, 2012. In Health Care & Retirement Corporation of America vs. Pittas, the Pennsylvania Superior Court affirmed a trial court award of more than $92,000 against the son of a woman who had received six months of care at a facility. The son raised several challenges to the trial court ruling, including the argument his mother could not be deemed “indigent” because she had modest monthly income of $1100. The son argued this income, plus her husband’s retirement income, was enough for the couple if they had not had the auto accident that led to hospitalization and extraordinary costs for her subsequent care in a nursing home. The court rejected the argument and repeatedly cited the “plain language” of the statute as the reason for the harsh result.

The son also argued unsuccessfully that he could not be held solely liable because other family members had not been sued. While the court said it was “sympathetic with the [son’s] obligation to support his mother without the assistance of his mother’s husband or her other children,” it was up to the son to join those individuals in the case if he wanted proportionate relief. The court also rejected the son’s argument that the suit should be stayed or set aside because of a pending Medicaid application, noting that any successful award could reduce his liability. In fact, although not acknowledged in the opinion, the Medicaid application had been denied, apparently because of questions raised during the application process, and the time for appeal had lapsed.

The Pittas opinion is significant because, unlike prior court rulings such as the 2005 ruling in Presbyterian Medical Center v. Budd, the court made no findings that the family had engaged in transfers or other unsuccessful efforts to avoid Medicaid eligibility rules. The court found the son’s claim of “inability” to pay for his mother’s care to be lacking in credibility, noting he had at least $85,000 in net annual income. But the court did not suggest the son was at “fault” for his mother’s indigent status. This was not a case where liability was tied to a family member’s efforts to divert assets.

Could a Pittas-style filial support ruling be coming soon to a state court near you? The answer is already “yes” in South Dakota. In 1994 and again in 1998, South Dakota appellate courts used South Dakota’s filial support law to enforce liability against adult children for health care or long-term care expenses of a parent. However, in those cases, it appears the rulings were tied to attempts to divert or hide the parent’s assets. According to news reports, some states, such as North Dakota, have already expressed interest in the Pittas ruling. Another state, Idaho, went the opposite direction in 2011 by repealing its filial support law entirely, citing the potential for confusion for families with nursing home costs.

Approximately 28 states have some type of civil or criminal filial support law on their books, although the enforceability of many of the state laws have been blocked or limited because of state rules on Medicaid. In most states filial support laws have been largely ignored in recent years. Pennsylvania is one of the few states that expressly provides for suits by care facilities or similar third-parties. The Pennsylvania statute permits a petition to be filed by the indigent person “or any other person . . . having any interest in the care, maintenance or assistance of such indigent person.”

Filial support laws carry various labels, with modern terms tending to suggest moral overtones that emphasize a family’s obligation to share “responsibility” for care. States seeking to provide nursing homes with collection tools that reduce the need for Medicaid may seek to follow the Pennsylvania route to a new frontier. The 2005 transfer of the filial support statute to the domestic relations code was rushed through the Pennsylvania legislature quickly and packaged with a cost-savings statute that tightened the state’s rules for Medicaid eligibility. Interested persons in other states will want to keep their eyes open.

Interested in the area, or wondering what your state’s laws might be with regard to filial support? For a more expansive discussion of such laws, including the roles they play in other countries, see Prof. Pearson’s recent article: “Filial Support Laws in the Modern Era.” As Prof. Pearson notes, these laws are sometimes described in terms of filial “responsibility” — as long ago as 1995 we wrote about an attempt to extend “family responsibility” laws by federal action (it came to nothing, as it turned out), and we have described individual cases attempting to impose filial support concepts before. The trend Prof. Pearson describes, however, could go well beyond previous attempts to hold children liable for their parents’ long-term care costs.

Faced with the high cost of nursing home care for a growing population of elderly residents, several states have flirted with the concept of “family responsibility” laws. Such laws, if enacted, would impose a duty on adult children to support their needy parents, and might be used to reduce both the frequency and cost of nursing home institutionalization.

A small number of states have adopted “family responsibility” laws, or have discussed reactivating old laws. Arizona does not have such a law, and no serious discussion has been heard on the issue. For the moment, federal rules prohibit states from enforcing such laws, but that may well change as Congress moves ahead with its pledge to “end welfare as we know it.”

How would family responsibility laws work in the real world? Would children be obligated to support even parents who had abandoned them? What about children of different means, or living in different states?

Some insight into how such a program might work comes from an unlikely quarter. The country of Singapore is presently conducting just such a socio-legal experiment, and the early results are interesting.

Singapore’s new law went into effect on June 1, 1996. Proponents of the law argued that it was needed for largely symbolic reasons, and that the specially-constituted courts should not expect to see very many cases. To everyone’s surprise, over 100 claims have been filed by (or on behalf of) parents against their children in the first three months.

According to a Wall Street Journal article, Singaporean legislators mostly wanted to provide legal support for traditional Asian values which encourage support of one’s parents. One couple making a claim before the new court, however, complained that their daughter “prefers paying for the living expenses of her dogs than for ours.” Another complainant is the daughter of an 85-year-old woman who argues that her brothers should help provide care for their mother; the two sons claim that the mother should simply be placed in a nursing home.

A third case described in the Wall Street Journal article involves the children from a second marriage seeking support from their father’s children from his first marriage. This case raises interesting legal and philosophical issues, since the support to which the father is entitled may be adjusted for the different treatment he accorded the two families when his children were young.

It is this latter issue which most troubles some Singaporean observers. Since the support to which parents may later be entitled is affected by the way in which they treat their young children, critics worry that parents will be encouraged to quantify every good thing they do for their children, just in case. Opponents argue that the legislation reduces the moral effect of traditional Asian values by converting them into a Western-style legal analysis of rights and responsibilities.

Will similar laws be in Arizona’s (or the country’s) future? It is too early to be certain, but Singapore’s experience may be an interesting precursor to our own.

One element of the Medicaid reform proposal recently passed by Congress (and vetoed by President Clinton) would, if adopted, have a dramatic effect on the way long term care is funded in the U.S. “Family Responsibility” laws, already on the books in some states, could become commonplace in the near future.

The Republican “MediGrant” proposal to replace Medicaid includes the following provision:

FAMILY RESPONSIBILITY.–A MediGrant plan may not require an adult child with a family income below the State median income (as determined by the State) applicable to a family of the size involved to contribute to the cost of covered nursing facility services and other long-term care services for the child’s parent under the plan.

What does this seemingly innocuous provision really mean? Under MediGrant, states would be free to adopt provisions requiring at least wealthy adult children to pay some or all of the costs of caring for their parents in nursing homes. The law would prohibit states from seeking contributions from children earning less than the median income for families of the same size; in Arizona, the median income for all families is just over $32,000.

While nothing in the MediGrant law requires states to adopt Family Responsibility laws, many already have such provisions on the books. Since current Medicaid rules prohibit Family Responsibility recovery, those laws have been unenforced for decades.

Little attention has been paid to the Family Responsibility (sometimes also called “Filial Responsibility”) provisions of the Republican proposal. Critics, however, note that the concept of charging adult children for the costs of their parents’ care is inconsistent with public notions of individual liability.

In addition, there are other concerns about the proposal. Since states would be free to adopt or ignore Family Responsibility laws, the costs of care would be treated differently in each state. Since states would have both legal and practical and practical problems pursuing out-of-state children, the effect of such laws would be to penalize only those children staying in their parents’ state. Furthermore, such laws would encourage children to leave the state and abandon parents.

Supporters of Family Responsibility laws point out that, as proposed, they would affect only wealthier children. As costs of long term care rise and federal funding is cut back, states insist that they must have as many alternatives as possible to meet potentially huge budget shortfalls.

Observers anticipate that the Family Responsibility provision may be removed in budget negotiations. A recent article on the subject syndicated in newspapers across the country notes that many Republicans view the provision as “political suicide” and expect to give up the issue in talks with President Clinton.